Neutral Citation: 1997 ONICDRG 177

OIC A96-000369

ONTARIO INSURANCE COMMISSION

BETWEEN:

ZENAIDE PINHEIRO

Applicant

and

GAN CANADA INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Ms. Zenaide Pinheiro, was injured in a motor vehicle accident on December 22, 1990. She applied for and received weekly income benefits of $256.00 from GAN Canada Insurance Company ("GAN Canada") for 156 weeks, payable under subsection 12(1) of Ontario Regulation 672,¹ on the basis that she suffered a substantial inability to perform the essential tasks of the employment which she was to start on January 2, 1991.

At 156 weeks, the disability test becomes more onerous, requiring an applicant to prove, pursuant to paragraph 12(5)(b) of the Schedule, that the injuries sustained in the accident continuously prevent the insured person from engaging in any occupation or employment for which that person is reasonably suited by education, training or experience. Shortly after the 156-week mark, GAN Canada terminated payment of weekly income benefits, effective January 11, 1994. Ms. Pinheiro however claims ongoing entitlement to weekly benefits. The parties were unable to resolve their dispute through mediation, and Ms. Pinheiro applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended (the "Act"). At the commencement of the hearing, the Applicant for the first time requested a special award, pursuant to subsection 282(10) of the Act.

The issues in this hearing are therefore:

1. Is Ms. Pinheiro entitled to receive weekly income benefits pursuant to paragraph 12(5)(b) of the Schedule ongoing from January 12, 1994?

2. Is Ms. Pinheiro entitled to payment of a special award?

Ms. Pinheiro also claims interest on any amounts owing, and her expenses incurred in this arbitration proceeding.

Result:

1. Ms. Pinheiro is entitled to payment of weekly income benefits until June 1, 1994. She is not entitled to payment of weekly income benefits from June 2, 1994 to April 17, 1997.

2. Ms. Pinheiro is not entitled to payment of a special award.

3. Ms. Pinheiro is entitled to payment of interest on overdue payments in accordance with subsection 24(4) of the Schedule.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on April 14, 15, 16, and 17, 1997, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Applicant:

Zenaide Pinheiro

Ms. Pinheiro's Representative:

Joseph A. Raimondo

Barrister and Solicitor

GAN Canada's Representative:

Robert A. Robinson

Barrister and Solicitor

GAN Canada's Officer:

Dwight Robinson

Witnesses:

Mr. Joe Pontes

Ms. Zenaide Pinheiro

Dr. A. Bevin Hamlet

Ms. Andrea Pinheiro

Ms. Pinheiro's evidence was given through a Portuguese/ English interpreter, Mr. Jose Madeira.

Court

Ms. Shari Bakalar

(April 14, 1997)

Reporters:

Ms. Elizabeth Monteiro

(April 15, 1997)

Mr. James Ranger

(April 16, 1997)

Exhibits:

Exhibit 1

Copy of letter from Viva Building Maintenance Limited, dated December 31, 1990.

Exhibit 2

Copy of letter from Messrs. Misir, Burych dated February 8, 1991, with attached Ontario Automobile Insurance Application for Accident Benefits.

Exhibit 3

Videotape of Horvath Investigations Inc.

Exhibit 4

Copies of curriculum vitae of Dr. Sergio Bacal, Shannon Turriff (private investigator), and Dr. C.I. Gayle Kumchy.

Exhibit 5

Copy of report of Dr. C.I. Gayle Kumchy, dated February 17 and March 3, 1997, and attached resume.

Exhibit 6

Copy of letter from Ms. June Nelder, Crawford & Company Healthcare Management, dated February 1, 1994, addressed to Dr. Bevin Hamlet.

Exhibit 7

Copies of 11 pages of handwritten clinical notes of Dr. A. Bevin Hamlet.

Exhibit 8

Insurer's Document Brief, Volume 1.

Exhibit 9

Insurer's Document Brief, Volume 2.

Exhibit 10

Insurer's Document Brief, Volume 3.

Exhibit 11

Letter from Mr. Joseph A. Raimondo, dated April 4, 1997, together with items #14, 15, 17, 18, 19, 20, and 21 noted therein.

Exhibit 12

Copies of curriculum vitae of Dr. Marvin B. Weber and Ms. Miranda J. Chivers, B.S.W., A.R.P.

Exhibit 13

Copy of unsigned letter from Simcoe Erie Group, dated December 30, 1993, with attached signed Ontario Automobile Insurance Assessment of Claim by Insurer, dated December 29, 1993.

Evidence and Findings:

1. Education, Training or Experience

Ms. Pinheiro was born on August 22, 1959 in Portugal. Her formal education ended at grade three. She worked on a farm in Portugal until immigrating to Canada in approximately 1974.

Ms. Pinheiro has worked in Canada only as a cleaning person or as a cleaning supervisor. She has worked full-time and part-time, both for businesses and in private homes. Ms. Pinheiro testified that her entire work history in Canada encompassed, off and on, a total of some two-and-a-half to three years of employment.

Ms. Pinheiro had not worked for some two years before the accident. Her most recent employment had been in 1988, working five days a week for Hampton Services.

Ms. June Nelder, a consultant with Crawford & Company Health and Rehabilitation, prepared a job description in June 1993 of Ms. Pinheiro's pre-accident employment, after interviewing her former supervisor at Hampton Services, Mr. Joe Pontes. The report indicates that Ms. Pinheiro worked in an industrial setting doing "light housekeeping and cleaning duties" including vacuuming large floor areas (6,000 to 7,000 square feet), and frequent (but not continuous) picking up of garbage. At the end of her employment, she also supervised other cleaners. Up to 67 per cent of her shift would be spent walking, pushing, pulling, reaching below shoulder level, lifting items up to 25 lbs., and carrying items less than 10 lbs. Up to 33 per cent of her shift entailed standing, stooping, and reaching at shoulder height. Less than 10 per cent of her job required crouching, lifting more than 25 lbs., or carrying more than 10 lbs. Ms. Pinheiro's job did not require any reaching above shoulder level. Ms. Pinheiro indicated that the large machine she used to vacuum did not require a lot of physical effort.

At the hearing, Mr. Pontes confirmed Ms. Pinheiro's 1988 "light-duty cleaning" and later supervisory duties (which included filling in for any absent workers). He testified that her tasks also included cleaning desks and washrooms, emptying ashtrays, and dusting.

Prior to the accident, Mr. Pontes had started his own cleaning business, Viva Building Maintenance Limited, and had hired Ms. Pinheiro to start full-time employment on January 2, 1991, at $8.00 an hour. Ms. Pinheiro would have been responsible for cleaning three floors of a municipal government building. Her duties would have included cleaning desks, cleaning out garbage, and removing jugs of water from meeting rooms. Unfortunately, the accident prevented Ms. Pinheiro from commencing that employment.

Mr. Pontes testified that since the car accident he has hired both Ms. Pinheiro and her daughter Andrea on three or four occasions, as casual labour. Although he has kept no records of this employment, he recollected that the assigned work was for five or six hours.

Ms. Pinheiro and her daughter both testified that they have worked together some eight or ten times since the accident, approximately five or six hours on each occasion. While Ms. Pinheiro was not sure when she first tried to work, Andrea believed that it was within the last three years. Ms. Pinheiro testified that she last tried to work more than two months before the hearing. She felt that Mr. Pontes was satisfied with her work because he called her again. However, both the Applicant and Mr. Pontes testified that Ms. Pinheiro has turned down work when she was not feeling well.

Andrea Pinheiro testified that after the accident her mother would do the less strenuous work duties such as light dusting and cleaning the sinks, while Andrea would vacuum, remove the heavy garbage, dust higher areas, and clean the toilets. She testified that her mother would have to take a 15 to 20 minute break every 20 minutes due to headaches and right arm pain.

A November 1991 report of International Rehabilitation Associates Inc. indicated that given her "limited education and work experience, Mrs. Pinheiro does not appear to have too many transferable skills to utilize in considering alternative employment."

2. Post-accident medical history

Ms. Pinheiro testified that as a result of the accident she sustained a broken collar bone, and has suffered from headaches, neck and back pain, leg numbness, right hand and arm complaints, problems sleeping, memory loss and difficulty concentrating.

Following discharge from the Sunnybrook Medical Centre emergency department (which confirmed a fracture of her right collar-bone and a head contusion without loss of consciousness), Ms. Pinheiro came under the care of an orthopaedic surgeon, Dr. M. Roscoe. His notes indicate that Ms. Pinheiro sustained a "badly displaced fracture of her right clavicle [which] despite conservative treatment . . . did not heal appropriately." Therefore, to secure a union, an open reduction and internal fixation of the right clavicle was performed on January 21, 1992 using a bone graft with plate and screws.

In May 1992, Dr. Roscoe indicated that the surgery had been successful, based on radiological confirmation of healing. His prognosis was that Ms. Pinheiro might be able to return to the work force at sometime in the future, but that she would require job modifications to avoid heavy manual use of her right upper extremity. Prior to this surgery, another orthopaedic surgeon, Dr. P. Welsh, had suggested that it would be three or four months following the surgery before Ms. Pinheiro could return to work as a cleaner.

Ms. Pinheiro's family doctor, Dr. Hamlet, however indicated in the spring of 1992, that the prognosis for full recovery was guarded due to the extent of the Applicant's right arm atrophy as a result of disuse, and the length of time that she had been off work. Dr. Hamlet further noted that Ms. Pinheiro was suffering from anxiety secondary to the accident. He felt that Ms. Pinheiro required a great deal of assistance to return her to a productive state.

Dr. Hamlet's concerns were echoed in a May 1992 report by Ms. Pinheiro's then caseworker, Ms. Miranda Brandt, who commented that without active rehabilitative support for the next six to twelve months, Ms. Pinheiro would "not recover and will become wholly dependent on the insurance system indefinitely."

Ms. Pinheiro at that point had been attending Professional Physiotherapy Centre for several months. The attending physiotherapist felt that if Ms. Pinheiro was properly motivated, with extensive exercise, the atrophy process could be reversed. Ms. Brandt felt that it was too early to determine Ms. Pinheiro's motivational level, but noted that there were few "encouraging systems" in place to motivate her towards full recovery. Ms. Brandt specifically referred to Ms. Pinheiro's lack of education and limited knowledge of English.

Subsequently, Ms. Brandt noted that Ms. Pinheiro was attending treatment regularly, was highly motivated to improve, and had made a genuine attempt to increase activity. Arm range of movement was noted to have increased by 90 per cent since the beginning of treatment. Arm strength and grip however remained very weak. The caseworker was of the opinion that full use of the arm would never be regained because of extensive atrophy. Ms. Pinheiro however resisted Ms. Brandt's suggestion (a suggestion which Dr. Hamlet supported) that she be vocationally retrained. Ms. Pinheiro had indicated to Ms. Brandt that she had never enjoyed school. In addition, her family was evidently not supportive of the Applicant upgrading her skills.

Ms. Pinheiro continued with physiotherapy at the Downsview Physiotherapy & Community Clinic, through the late spring, summer, and autumn of 1992. By October 1992, her grip strength was noted to be 25 lbs. with the left hand, and 16 lbs. with the right.

In the latter part of 1992, a neurologist, Dr. M. Weber, saw Ms. Pinheiro with regard to her headache and impaired memory complaints. Dr. Weber concluded that the SPECT scan to which he referred Ms. Pinheiro was consistent with his diagnosis of post-traumatic vascular headaches. Dr. Weber however did not comment as to whether these complaints were disabling.

Ms. Pinheiro was neuropsychologically assessed in December 1992 by a psychologist, Dr. J. McLachlan. Dr. McLachlan found significant attention, concentration, and memory deficits. He noted severe cognitive dysfunction and modest intellectual functioning which at least in part pre-existed the accident. He concluded that Ms. Pinheiro's inability to acquire new knowledge, except under close supervision, presented a substantial barrier to most types of independent work. Dr. McLachlan recommended specific referrals for her attention and concentration problems, a stress management programme, as well as possible placement in a sheltered workshop to help build up physical tolerance. Dr. McLachlan's suggestions however were not pursued by either the Applicant or the Insurer.

Following removal of the plate and screws from her collar-bone in January 1993, Ms. Pinheiro was again seen in February 1993 by Dr. Welsh. He felt that from a physical viewpoint, she should be able to return to her regular job in a month or so, but whether she would return "will remain essentially up to her own motivation and capability of overcoming some of the anxieties which clearly beset her." In May 1993, Dr. Roscoe was of the opinion that Ms. Pinheiro could return to cleaning from a physical standpoint, with the restrictions that she not lift anything heavy, or repetitively reach above her shoulder.

Ms. Pinheiro's new caseworker, Ms. June Nelder, therefore referred Ms. Pinheiro to a psychologist, Dr. Bernstein, in May 1993. Dr. Bernstein felt that there were neuropsychological, chronic pain, and depressive symptom barriers to Ms. Pinheiro's rehabilitation. He recommended an integrated comprehensive rehabilitation programme to address these interacting factors which were resulting in disability. Ms. Nelder supported such a multi-disciplinary approach, either at a clinic, or in an active physiotherapy programme combined with psychological counselling.

Ms. Pinheiro was therefore referred to the Canadian Back Institute ("CBI") for a six-week rehabilitation programme. The CBI began its treatment by noting that deconditioning, the absence of an awaiting job, Ms. Pinheiro's subjective belief in her disability, and what appeared to be a chronic pain syndrome with pain magnification, made the prognosis for return to work poor.

Ms. Pinheiro participated at the CBI over the summer months. Initially it was noted that Ms. Pinheiro was working hard, was compliant, and although pain focused, was "working with her pain, and . . . not letting it limit her activities." By August 1993 Ms. Pinheiro was able to lift 15 lbs. from floor to waist and carry this weight on a repetitive basis. She was also able to perform a bending task for 14 minutes. However, Ms. Pinheiro by that time was attending irregularly due to pain. The CBI concluded its involvement with the following opinion:

There is no objective evidence of any organic pathology that would prevent Mrs. Pinheiro from resuming her pre-accident activities. Any further formal treatment for Mrs. Pinheiro will serve no purpose other than to reinforce disability behaviour. It is of significance to note that this woman has been off for over 2 years. Statistically the chance of her ever returning to work to her former work at this time are nil.

Ms. Pinheiro had earlier been referred by Ms. Nelder to Dr. S. Bacal, a Portuguese-speaking psychologist. In June 1993, Dr. Bacal noted that while Ms. Pinheiro considered herself to be disabled, he did not find that her "depression and residual post-traumatic stress symptoms [were] severe enough to represent a psychiatric or psychologically-based disability that could prevent her from trying to return to some form of gainful employment." Dr. Bacal supported "some form of psycho-therapeutic intervention" (which he noted had been recommended previously by two psychologists) to address "the underlying psychogenic factors that are compounding her physical symptoms and contribute to the maintenance of some aspects of her disability." Dr. Bacal further agreed that Dr. McLachlan's vocationally-oriented suggestions would facilitate her eventual re-entry into the workforce. He felt that Ms. Pinheiro should be encouraged to take a more "pro-active" stance in this regard.

In the autumn of 1993, Dr. Hamlet believed that physically, the Applicant should be able to work as a cleaner, but felt that the "psychological barrier" impeded her recovery. He agreed that Ms. Pinheiro would benefit from some psychological counselling, but was not optimistic that such counselling would bring positive results, as Ms. Pinheiro lacked insight into her problems.

In November 1993, Ms. Pinheiro saw Dr. W.J. Horsey, a neurosurgeon. He felt that Ms. Pinheiro had sustained a mild cerebral concussion, the organic features of which were minimal and non-disabling. He felt however that Ms. Pinheiro was showing features of anxiety and depression which contributed to her perceived memory loss. He agreed with Dr. Bacal that Ms. Pinheiro might benefit from a brief course of counselling. Although not his area of expertise, he opined that there was [no] "orthopaedic contraindication to returning to work and that there are no limitations or restrictions with respect to resuming her job as a cleaner." Dr. Horsey concluded:

In the absence of an organic reason for complaints, one must recognize exaggeration, fear and mild residual discomfort as the principal reasons for Ms. Pinheiro's continuing inactivity. I have no reason to believe that she is malingering. Her perceptions lead to self-imposed limitations. To overcome this, one might perhaps offer her a graduated return to work over a period of one month. She will doubtless complain about this. She should be encouraged to become productive as there is really no physical reason why she should not and although I am not a psychiatrist, I find no emotional reason why she cannot begin to take some responsibility.

Ms. Nelder sent Dr. Hamlet a copy of Dr. Horsey's report, and subsequently met the family doctor, together with Ms. Pinheiro and her husband on December 14, 1993. Ms. Nelder confirmed the gist of this meeting in a letter dated the same day, addressed to Dr. Hamlet, in which she set out Dr. Horsey's recommendations that Ms. Pinheiro attend a short course of psychological counselling, and be encouraged to gradually return to work over a period of one month. She further stated that Dr. Hamlet agreed with Dr. Horsey's "opinion and recommendations for further rehabilitation management." Ms. Nelder agreed to ensure that Ms. Pinheiro receive some short-term psychological counselling. She noted that Dr. Hamlet felt that Ms. Pinheiro had "exhausted all medical avenues related to her ongoing subjective complaint and it would be futile to refer her to any further specialist for investigation at this time."

Notwithstanding Ms. Nelder's request that Dr. Hamlet make any necessary corrections to her December 14, 1993 letter, Dr. Hamlet signed the letter some two weeks later and returned it to Ms. Nelder unamended.

By letter dated December 30, 1993, addressed to Ms. Pinheiro's counsel, the Insurer advised that Ms. Pinheiro had reached the 156-week mark from her accident. Based on Dr. Horsey's report and Ms. Nelder's December 14, 1993 meeting, Ms. Pinheiro's weekly benefits were to be terminated following the issuance of one further cheque to cover the month up to January 11, 1994. The Insurer however indicated that it would "of course continue to fund any treatment program/counselling sessions undertaken by Mrs. Pinheiro."

In January 1994, in response to Ms. Nelder's query whether vocational counselling was an option, the Insurer responded that they "would consider short period of voc ie putting a resume together but that's all" [sic]. On February 1, 1994, Ms. Nelder wrote to Dr. Hamlet providing the names of two Portuguese/ Spanish speaking psychologists, one of whom was Dr. Bacal. She stated that she had advised Ms. Pinheiro to see Dr. Hamlet to follow up on this psychological treatment, and asked that Dr. Hamlet ensure that Ms. Pinheiro comply, approval having been received from the Insurer. Ms. Nelder commented that this treatment will "hopefully assist her in preparing for a return to work" [emphasis added].

Ms. Pinheiro never subsequently attended for psychological counselling. She did not remember discussing such a referral with Dr. Hamlet. She testified that she didn't know who was to arrange this treatment, but if someone from the Insurer had asked her to go, she would have gone.

In February 1994, Dr. Bacal provided a follow-up report after reviewing Dr. Horsey's report. Dr. Bacal confirmed that significant inconsistencies in Ms. Pinheiro's presentation suggested a psychogenic magnification of symptoms. He concluded that although Ms. Pinheiro exhibited some degree of emotional dysfunction, it was not severe enough to disable her or prevent her from attempting to return to some form of gainful employment. He felt that her cognitive deficits were not organic, but rather reflected the combined effect of limited pre-morbid intellectual cognitive functioning and persistent low-grade post accident depression, anxiety and post-traumatic features as well as chronic pain and an overall sense of malaise. His prior recommendations of short-term psycho-therapeutic intervention and vocational rehabilitation were still felt to be appropriate.

In February 1994, Ms. Cindy Martin of Crawford & Company Healthcare Management met with Ms. Pinheiro to assist her job search techniques. Ms. Pinheiro is reported to have stated that she had already initiated her own job search, and had arranged a job interview. Ms. Pinheiro testified that she could not remember whether she told the caseworker that she had an upcoming interview. She denied, with some equivocation, whether she told the caseworker that she was going to contact former employers. Ms. Martin concluded in her letter to the Insurer that:

Mrs. Pinheiro stated that she is willing to attempt to re-enter the workforce, and did not express any concerns during our meeting, about her ability to physically tolerate the work.

[emphasis added]

The Crawford & Company rehabilitation file was subsequently closed in March 1994.

Ms. Pinheiro's first medical appointment after early January 1994 was with Dr. Hamlet in May 1994. Neck and shoulder pain, and headaches are noted. Her next medical appointment was in August 1994, again with Dr. Hamlet. Increased right arm and shoulder pain is noted over the last day. On examination, a good range of shoulder motion is noted.

Between the summer of 1994 and the winter of 1996, Ms. Pinheiro saw Dr. Hamlet on several occasions for different complaints, but accident-related complaints are only noted once. Ms. Pinheiro's next accident-related medical visit was March 27, 1996, with Dr. Hamlet, concerning low back pain complaints. Dr. Hamlet testified that his opinion at that time was that Ms. Pinheiro:

would not be able to return to her regular job on a full-time basis . . . [but that] an attempt could be made sometime . . . to return to some kind of modified work or light duty and gradually increase up to a level that probably she could tolerate . . . initially . . . she would have to start on a part-time basis, maybe two or three hours a day, and then gradually see how she functions and how she copes with it, and then to increase the intensity of the work . . .

Ms. Pinheiro has not seen Dr. Hamlet for her medical complaints since this March 1996 appointment. Ms. Pinheiro in fact did not see any other medical practitioner until a flurry of medico-legal appointments were set up in the months preceding the arbitration hearing.

3. Analysis

To qualify for weekly income benefits under paragraph 12(5)(b) of the Schedule, an applicant must prove, on the balance of probabilities, that the injuries sustained as a result of the accident continuously prevent that person from engaging in any reasonably suitable occupation or employment, based on the vocational and educational history of the applicant. Unlike the pre-156 week disability test, the scope of inquiry is not limited to the occupation or employment in respect of which the insured person initially qualified for benefits.

The Applicant referred me to my decision in Murray and Wawanesa Mutual Insurance Company (August 23, 1996), OIC A-003224. In that case I said that:

The question as to an applicant's onus regarding the post-156 week entitlement test has been the subject of considerable comment. It has been accepted that "Applicants are not required to prove a negative: that there is no job that they can do. "² Arbitrator Manji in Caruso states that "the applicant is not required to demonstrate that he or she is incapable of any other conceivable and commensurate employment or occupation."

Recent arbitration decisions have grappled with what is the "positive obligation"³on insureds. Arbitrator Evans stated that applicants as part of discharging the onus of proof "must explore career options."⁴ Arbitrator Seife held that "the applicant must identify some sort of 'suitable' employment, describe the physical demands of the work and demonstrate with credible evidence that their injuries continuously prevent them from engaging in such employment."⁵ Arbitrator Manji in the Caruso decision required the Applicant (if unable to adduce strong medical evidence of total disability) to provide some evidence that he or she "has made a bona fide effort to identify, try to find or attempt some sort of 'suitable' employment but failed because his or her injuries continuously prevent him or her from engaging in such employment."

In this case, there is no evidence of total disability; nor is there any evidence that the Applicant has explored career options or has attempted to find any employment other than the type of position that she had been hired to do at the time of the accident.

Despite the fact that Ms. Pinheiro had a very limited pre-accident work history in Canada (a maximum of three years of employment, part of it being part-time, out of some 13 adult years) I heard no evidence or submissions as to why part-time employment in this particular case was not reasonably suitable employment.

In addition, Ms. Pinheiro had, despite her limited knowledge of English, been employed as a cleaning supervisor, albeit with the occasional responsibility of taking over the cleaning duties of her staff. I heard no evidence of any attempt by Ms. Pinheiro to find similar employment, or employment which was strictly supervisory.

Rather, it was the Applicant's position that because of her very limited education, poor knowledge of English, age, and restricted job experience (yet full-time job offer at the time of the accident), a full-time physically demanding cleaning position was the only reasonable job option available to her.

The Applicant further contended that it was the "constellation of her problems" which continuously prevented her from engaging in such employment. These problems included neurological complaints of headaches, lack of concentration and memory problems, as well as right arm pain, atrophy, and a possible reflex sympathetic dystrophy. In addition, there were orthopaedic complaints of neck, back, and leg pain, as well as psychological complaints of depression and anxiety.

The Applicant's "constellation of problems" argument however downplayed the evidentiary gaps which existed in the various areas of complaint.

In terms of Ms. Pinheiro's neurological complaints, the Applicant's neurologist, Dr. Weber, does not state that the Applicant's subjective complaints of impaired memory were disabling. It is purely speculative whether Dr. McLachlan's 1992 neuropsychological findings of modest intellectual functioning were caused or contributed to by this accident. Nor did Dr. McLachlan opine whether his finding of significant deficits in attention, concentration and memory (which on the basis of the history given by Ms. Pinheiro, "appears to have been acquired since the accident") had any organic basis.

On the other hand, the Insurer's neurosurgeon, Dr. Horsey, found in November 1993 that the Applicant had little difficulty with her memory. He stated that abnormal neuropsychological test results are not necessarily indicative of organic mental impairment or organic personality changes, but rather could be due to motivation, anxiety, or other effects. He felt that Ms. Pinheiro had sustained "a mild cerebral traumatic concussion with almost non-existent retrograde amnesia and post-traumatic amnesia . . . Psychological testing has shown that organic features are minimal and not disabling." His November 1993 opinion that Ms. Pinheiro could gradually return to work over the period of a month was reinforced in January 1997 when he stated that "from a neurological point of view . . . there is no disability at present, nor has there been for the past three years." Furthermore, the Insurer's neuropsychologist, Dr. Kumchy, indicated in an early 1997 report that Ms. Pinheiro's "impoverished" (significantly subjective) test results (which would indicate "someone who was seriously cognitively dysfunctional") contrasted with someone who gave a very detailed history of her accident, and in the case of intellectual testing at least, seemed "likely to be the product of variable motivation."

There therefore was little evidence of any organic neurological basis for Ms. Pinheiro's complaints or her alleged disability.

Turning to her orthopaedic complaints, Ms. Pinheiro's treating orthopaedic surgeon, Dr. Roscoe, felt in May 1993 that physically, the Applicant could return to cleaning work, subject to restrictions on heavy lifting or repetitive lifting above her shoulder. Neither of these requirements was included in Ms. Pinheiro's June 1993 job description prepared by Ms. Nelder.

In February 1993, the Insurer's orthopaedic surgeon, Dr. Welsh, felt that physically, Ms. Pinheiro should shortly be able to return to her regular job. Following a further January 1997 examination, Dr. Welsh reiterated his opinion that Ms. Pinheiro did not display any physically based limitation precluding her from being able to engage in all the job demands required of her prospective job with Viva. Upon reviewing a surveillance videotape showing Ms. Pinheiro swinging her right arm in a normal manner, using her right hand to put air in the tire of her car without any sign of inhibition or disability, and sweeping debris from a window frame without limitation or difficulty, he described her presentation of very limited general activity, inability to engage in housework, and self-limiting function on examination to be "clearly one of wilful misrepresentation."

The Applicant relied on the reports of Dr. Ogilvie-Harris, an orthopaedic surgeon retained by her counsel. After seeing Ms. Pinheiro for the first time in early 1997, Dr. Ogilvie-Harris concluded that Ms. Pinheiro could only return to a job which did not involve repetitive bending or lifting, prolonged standing, or carrying heavy objects. Unfortunately these terms were not defined, nor was Dr. Ogilvie-Harris asked to comment on the ability of the Applicant to perform the type of employment specified in Ms. Nelder's job description.

There are further difficulties with Dr. Ogilvie-Harris' report. He incorrectly states that Ms. Pinheiro had been working for two years at the time of the accident (which Dr. Welsh was separately told). He states that Ms. Pinheiro has not been able to return to work since the accident, without mentioning Ms. Pinheiro's eight to ten admitted "attempts" to work post-accident. He relates that the Applicant has trouble standing for more than 15 minutes, walking for more than five or ten minutes without pain, or "lifting or carrying anything," with no indication that he reviewed the surveillance videotape which shows Ms. Pinheiro carrying a case of bottled pop, using her right hand to handle a rake and a broom, and being able to walk and stand for extended periods without any apparent discomfort. Dr. Hamlet testified that "in medicine your history is 90 per cent of your diagnosis." The errors in Dr. Ogilvie-Harris' history cause me to give less weight to his opinion.

In April 1997, Dr. Ogilvie-Harris noted shoulder weakness, probably secondary to pain, as well as wasting of Ms. Pinheiro's biceps muscle and some abnormal hand colouration. No specific muscle weakness however is noted. In addition, there is no notation of grip strength. Dr. Welsh had earlier that year obtained a right grip strength of approximately seven pounds, which he called "a totally inadequate effort." No explanation was provided as to why Ms. Pinheiro's right grip strength would have decreased from the 16 pounds noted in October 1992, which was prior to the second surgery, at which time there was a general consensus of ongoing disability.

Dr. Ogilvie-Harris only considered the possibility that Ms. Pinheiro might be developing reflex sympathetic dystrophy. His conclusion of disability however included reliance on the psychological and emotional difficulties which she was experiencing. I was not provided with any evidence of Dr. Ogilvie-Harris' expertise in this area. For all of these reasons, I prefer the orthopaedic opinions of Dr. Roscoe and Dr. Welsh over that of Dr. Ogilvie-Harris.

From a psychiatric perspective, there was no evidence of continued disability after termination of benefits. Rather, Dr. Bacal had earlier stated in August 1993 that there was no psychological or psychiatric-based disability preventing Ms. Pinheiro from trying to return to some form of gainful employment. In February 1994, he indicated that although Ms. Pinheiro exhibited "some degree of emotional dysfunction," this was not severe enough to disable her or prevent a return to work attempt.

In September 1993, Ms. June Nelder noted that the Applicant's family doctor, Dr. Hamlet, agreed that physically, Ms. Pinheiro had good function and should be able to do her pre-accident job. Dr. Hamlet however testified that based on his experience and reading, the chances of someone like Ms. Pinheiro getting back to full-time employment were poor, given that her disability had existed for more than two years. On the other hand, he testified that an attempt could be made to start Ms. Pinheiro working two hours a day and then gradually try to bring her back to what she was doing before the accident. Dr. Hamlet's opinion however as to even partial continuing disability was weakened by the following:

• he had never specifically assessed Ms. Pinheiro with regard to disability;

• he had last seen Ms. Pinheiro more than a year before, having seen some 4,000 patients in the interim, and having no independent recollection of any one visit;

• he had no orthopaedic, neurological, or psychiatric expertise;

• his opinion was significantly based on the not entirely accurate history given by Ms. Pinheiro;

• he had only seen Ms. Pinheiro regarding accident-related complaints on four occasions in the last eight visits (which covered more than a three-year period);

• he agreed that if a specific physical problem had concerned him, he would have referred her to a specialist, but since 1994, there had been no such referral;

• he returned to the caseworker a signed letter in which he is noted to have agreed with Dr. Horsey's 1993 opinion. I find that this opinion included encouraging Ms. Pinheiro to take responsibility for herself and gradually return to work over a one-month period.

For these reasons, I place little weight on Dr. Hamlet's opinion that Ms. Pinheiro remains disabled from any employment for which she is reasonably suited.

I also place little weight on the opinion expressed by the CBI prior to the termination of benefits that someone like Ms. Pinheiro has a statistically nil chance of returning to work. Unlike a tort case, a disability dispute under the Schedule provides the luxury of not having to make "crystal ball" predictions, but rather requires only a determination to the date of the hearing. Hence, I find the evidence (or lack of evidence) from the time period in dispute more persuasive than earlier opinions based on statistical probability.

Ms. Pinheiro's evidence as to her level of disability during the period in question had significant inconsistencies which caused me concern. Her evidence that she has pain if she moves her right arm even a little was contradicted by her lack of any visible reaction following unguarded varied voluntary use of her right arm. Her professed daily intake of three or four pain prescription pills from 1994 to the date of the hearing was inconsistent with the evidence of Dr. Hamlet, and the lack of any evidence of any other doctor continuing to prescribe medication. Ms. Pinheiro's evidence that she can only work for half an hour and then has to rest for about two hours was inconsistent with her evidence that Mr. Pontes was satisfied with her work and that she worked for him on eight or ten occasions.

In December 1993, the Insurer had agreed to fund any treatment programme or counselling sessions undertaken by the Applicant, as confirmed by letter sent to Ms. Pinheiro's counsel. In addition, specific authorization for psychological counselling was confirmed in writing with Dr. Hamlet, and I accept Ms. Nelder's statement that the Applicant was orally so advised. I accept the opinion of Dr. Bacal, Dr. Horsey and Dr. Hamlet over that of the CBI that this medical recommendation was reasonable, and I find that it was reasonable for Ms. Pinheiro to have taken responsibility for her medical well-being, especially considering that she had a sympathetic family doctor, and was legally represented.

Therefore, following the decision of Director's Delegate Draper in Puopolo and Wellington General Insurance Company, July 25, 1996, P-006445, I find the failure of the Applicant to follow up on any recommended treatment following the termination of benefits to be a further indication that her injuries were not as disabling as she claimed.

I do accept however that given the period of time that Ms. Pinheiro was off work, that it is probable that she needed an adjustment period, perhaps with some assistance, to get back to reasonable remunerative work. I do not think that the December 1993 notice afforded sufficient time to meet this goal. I find that the adjustment period should have commenced when Ms. Nelder met her undertaking of obtaining funding for psychological treatment, and communicated this to Dr. Hamlet and Ms. Pinheiro. Dr. Bacal had indicated that no more than three or four months of weekly sessions to address depressive and stress-related symptoms would be necessary to address Ms. Pinheiro's "phobic fears and avoidant behaviour." I find that four months from February 1, 1994 (when Ms. Nelder wrote Dr. Hamlet specifically confirming funding for psychological treatment) was a reasonable period to return Ms. Pinheiro to suitable remunerative employment, that is up to June 1, 1994. Following that date, up to the time of the conclusion of this hearing, I find it that was Ms. Pinheiro's failure to pursue reasonable rehabilitation and vocational options rather than this accident that led to her continued failure to return to any employment for which she was reasonably suited.

4. Special Award

At the commencement of the hearing, the Applicant raised for the first time a claim for a special award pursuant to subsection 282(10) of the Schedule. The Insurer objected to including this issue in this proceeding at this late date. I find that pursuant to the said provision, I have jurisdiction to consider the issue of a special award, even when raised at a late date, subject to the Insurer being given adequate particulars of the claim and having a reasonable opportunity to respond to the allegations presented. I find that these prerequisites were met in this case.

However, I find that based on the opinion expressed by Dr. Horsey, the meeting at the office of Dr. Hamlet, and Dr. Hamlet's subsequent return of Ms. Nelder's correspondence, signed and unamended, that it was not unreasonable for the Insurer to terminate benefits when it did. I therefore decline to order a special award.

Expenses:

Submissions on expenses were deferred. I may be spoken to, should the parties not agree on the issue of expenses.

Order:

1. Gan Canada Insurance Company shall pay Ms. Pinheiro weekly income benefits until June 1, 1994. Gan Canada Insurance Company shall not pay Ms. Pinheiro weekly income benefits from June 2, 1994 until April 17, 1997.

2. Gan Canada Insurance Company shall pay Ms. Pinheiro interest on overdue payments in accordance with subsection 24(4) of the Schedule.

September 26, 1997

Lawrence Blackman

Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Singh and State Farm Mutual Automobile Insurance Company (May 8, 1995), OIC A-005714), at p. 20.
3. 3Gagnon and Jevco Insurance Company (May 1, 1996) OIC A-015357.
4. 4Gagnon, ibid, at p. 5.
5. 5Wigle and Royal Insurance Company of Canada (January 12, 1996) OIC A-012312.